DOCSLIB.ORG

NOTICE: SLIP OPINION (Not the Court's Final Written Decision)

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text

Load more

NOTICE: SLIP OPINION (not the court’s final written decision) The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. This opinion was flhr~ fen- rrtm at. 6~ Q0~11 on,Jw.,l~?Jit1 (SW)~~ SUSAN L. CARLSON SUPREME COURT CLERK IN THE SUPREME COURT OF THE STATE OF WASHINGTON STATE OF WASHINGTON, ) ) Respondent, ) NO. 92475-9 ) v. ) ) EN BANC DONALD ORMAND LEE, ) ) Petitioner. ) Filed JUN 1 5 2017 ________ ) FAIRHURST, C.J.-Donald Ormand Lee was convicted on two counts of third degree rape of a child. RCW 9A.44.079. Before trial, Lee moved to cross­ examine the victim, J.W., about a prior false rape accusation she had made against another person. The trial court permitted Lee to ask J.W. if she had made a false accusation to police about another person, but it prevented Lee from specifying that the prior accusation was a rape accusation. Lee claims this violated his confrontation clause rights. U.S. CONST. amend. VI. Lee also contends the four year delay between his initial arrest and the trial constitutes a manifest constitutional error warranting review for the first time on appeal. Lastly, Lee challenges the trial court's imposition of legal financial obligations (LFOs ). For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Lee, No. 92475-9 Because the State's legitimate interests in excluding prejudicial evidence and protecting sexual assault victims outweighs Lee's need to present evidence with minimal probative value, the trial court did not abuse its discretion when it prevented Lee from specifying that J.W. had falsely accused another person of rape. When the court permitted Lee to cross-examine J.W. about her prior false accusation, it provided Lee with an adequate opportunity for confrontation. Limiting the scope of that cross-examination was within the court's discretion. Further, because Lee was not actually restrained and because charges had not been filed, the four year delay between his initial arrest and the trial is not a manifest constitutional error warranting review for the first time on appeal. We therefore affirm the Court of Appeals in part. However, we remand the case for consideration of Lee's ability to pay LFOs. I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY On October 9, 2009, Lee was arrested on suspicion of third degree rape of a child. The victim, J.W., told police she engaged in various sex acts with Lee, whom she knew only as "'Rick,"' during the summer of 2008. Clerk's Papers (CP) at 1. On October 14, 2009, the court released Lee because no charges were filed. For the next two and a half years, Lee's case "fell through the cracks." lB Report of Proceedings (RP) (Part B, Dec. 19, 2013) at 201. The Kelso Police Department initially investigated the allegations, but transferred the case to the 2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Lee, No. 92475-9 Cowlitz County Sheriffs Office after determining it was outside the city's jurisdiction. The sheriffs office received the report from the Kelso Police Department in March 2009. A detective did some "sporadic" work on the case but retired in April 2010. Id. Lee's case then went unnoticed until May 2012, when Detective Brad Thurman discovered it while reviewing unassigned cases. In March 2013, Lee was arrested again on suspicion of third degree rape of a child based on the same allegations from 2009. On March 6, 2013, the State charged Lee with five counts of third degree rape of a child. RCW 9A.44.079. Each count alleged Lee engaged in sexual intercourse with J.W., age 15, between June and October 2008. Each count also alleged as an aggravating factor that the offense "was part of an ongoing pattern of sexual abuse of the same victim . manifested by multiple incidents over a prolonged period of time." CP at 6-8; RCW 9.94A.535(3)(g). Lee pleaded not guilty. The trial commenced on December 18, 2013. Before trial, Lee moved to introduce evidence that J.W. previously fabricated a rape allegation against another individual. A police report showed that on June 11, 2008, J. W. and her mother called the Kelso Police Department, alleging that J. W. had been raped by a classmate. The next day, J.W. and her mother called again to 3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Lee, No. 92475-9 explain that J.W. "had made up the story regarding the rape" and that the sex "was consensual." CP at 17. The trial court speculated that J.W. 's prior false statement is admissible under ER 608 1 to demonstrate J.W.'s character for untruthfulness but also potentially prohibited by the rape shield statute as past sexual behavior: "So, you know, part of me says, under ER 608 it comes in, but under the rape shield statute, part of me says it should not come in. So I'm a little bit unsure." IA RP (Dec. 18, 2013) at 29. To strike a "fair balance between those two competing interests," the court permitted Lee to ask J.W. if she had made a prior false accusation about another person to police. Id. at 33. However, the court prohibited Lee from specifying that it was a rape accusation or mentioning any past sexual behavior: [A]s far as the issue of [J.W.] ... making a -- a false accusation about being -- to the police, I'm going to allow that, that she made a false accusation about another person to the police. The cross examination or the redirect, however it comes out[,] would be limited in that she could talk about her motivations, maybe she was scared, uncertain and 1 "Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility ... may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross examination of the witness ( 1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified." ER 608(b). 4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Lee, No. 92475-9 she promptly rectified it the very next day and there will be no mention of any ... sexual conduct in -- in any way. Id. J.W. was the State's main witness at trial. J.W. testified that in June 2008, she received an unusual phone call from a man identifying himself as "'Rick.'" Id. at 57. J.W. later identified the defendant as "Rick," explaining she never knew him as Lee. Id. at 61. Lee asked to meet J.W. in person and gave her his telephone number. J.W. agreed to meet Lee at Tam O'Shanter Park in Kelso, Washington. After their first meeting at Tam O'Shanter Park, J.W. testified she and Lee began having regular sexual interactions. Typically, Lee would pick up J.W. after summer school and drive somewhere to engage in oral and vaginal sex. J.W. testified she would also perform oral sex on Lee while he drove. Lee always drove the same black Camara or Thunderbird. They would usually go to either Tam O'Shanter Park or Riverside Park. On one occasion, they went to a residence in Castle Rock that Lee claimed was his ex-girlfriend's house. J.W. remembered petting two cats at the Castle Rock house. J.W. also remembered visiting the residence that Lee shared with his mother. J.W. met Lee almost every day after summer school from June through September 2008. They did not have sex every day, but J.W. estimated they had sex "more than ten [but] less than thirty" times during that summer. Id. at 82. J.W. 5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Lee, No. 92475-9 provided specific details for some of these interactions.
Recommended publications
  • 4.08 “Open Door” Evidence (1) a Party

    4.08 “Open Door” Evidence (1) a Party

    4.08 “Open Door” Evidence (1) A party may “open the door” to the introduction by an opposing party of evidence that would otherwise be inadmissible when in the presentation of argument, cross-examination of a witness, or other presentation of evidence the party has given an incomplete and misleading impression on an issue. (2) A trial court must exercise its discretion to decide whether a party has “opened the door” to otherwise inadmissible evidence. In so doing, the trial court should consider whether, and to what extent, the evidence or argument claimed to “open the door” is incomplete and misleading and what, if any, otherwise inadmissible evidence is reasonably necessary to explain, clarify, or otherwise correct an incomplete and misleading impression. (3) To assure the proper exercise of the court’s discretion and avoid the introduction of otherwise inadmissible evidence, the recommended practice is for a party to apply to the trial court for a ruling on whether the door has been opened before proceeding forward, and the court should so advise the parties before taking evidence. Note Subdivisions (1) and (2) recite the long-settled “open door” principle in New York, as primarily explained in People v Melendez (55 NY2d 445 [1982]); People v Rojas (97 NY2d 32, 34 [2001]); People v Massie (2 NY3d 179 [2004]); and People v Reid (19 NY3d 382 [2012]). Melendez dealt with the issue of whether the defense had opened the door to permit the prosecutor to explore an aspect of the investigation that would not otherwise have been admissible. The Court began by noting that, when an “opposing party ‘opens the door’ on cross-examination to matters not touched upon during the direct examination, a party has the right on redirect to explain, clarify and fully elicit [the] question only partially examined on cross-examination.” (Melendez at 451 1 [internal quotation marks and citation omitted].) Argument to the jury or other presentation of evidence also may open the door to the admission of otherwise inadmissible evidence.
  • Rationalization and Limitation: the Use of Learned Treatises to Impeach Opposing Expert Witnesses

    Rationalization and Limitation: the Use of Learned Treatises to Impeach Opposing Expert Witnesses

    RATIONALIZATION AND LIMITATION: THE USE OF LEARNED TREATISES TO IMPEACH OPPOSING EXPERT WITNESSES Edward J. Imwinkelried* [O]therwise, an ignoramus in a profession might, by an assertion of learning, declare the most absurd theories to be the teachings of the science of which he was a professed expert . –Clark v. Commonwealth, 63 S.W. 740, 744 (Ky. 1901) INTRODUCTION The numbers tell the story of the importance of the topic. To begin with, it has become commonplace for litigators to present expert testimony at trial. In one study of over 500 trials, the researchers found that experts appeared as witnesses in 86% of the hearings.1 On average, there were 3.3 experts per trial.2 Some commentators have asserted that in the United States, trial by jury is evolving into trial by expert.3 If the number of expert witnesses is impressive, the volume of expert literature is awesome. Even apart from the number of published texts and treatises devoted to expert topics, the regular periodicals dealing with such subjects now number in the thousands. The National Institutes of Health’s Library of Medicine covers thousands of biomedical journals dating back to 1948.4 The Library includes Index Medicus, a database indexing domestic as well as international medical literature;5 4,945 journals are currently indexed in Medicus.6 MEDLARS is the Library’s computerized Medical Literature Analysis and Retrieval System.7 The volume of expert literature is not only * Edward J. Barrett, Jr. Professor of Law, University of California Davis. Former Chair, Evidence Section, American Association of Law Schools.
  • This Opinion Is Subject to Formal Revision Before Publication in the Atlantic and Maryland Reporters

    This Opinion Is Subject to Formal Revision Before Publication in the Atlantic and Maryland Reporters

    Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 13-CF-735 FLOYD E. BROOKS, APPELLANT, v. UNITED STATES, APPELLEE. Appeal from the Superior Court of the District of Columbia (CF1-24121-09) (Hon. Lynn Leibovitz, Trial Judge) (Argued May 5, 2015 Decided June 4, 2015) Thomas D. Engle, with whom Sharon L. Burka was on the brief, for appellant. John Cummings, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, and S. Vinet Bryant, Assistant United States Attorneys, were on the brief, for appellee. Before GLICKMAN and THOMPSON, Associate Judges, and FARRELL, Senior Judge. FARRELL, Senior Judge: A jury found appellant guilty of two counts of armed premeditated murder and related firearms offenses arising from the shooting deaths of brothers Robert and Raymond Williams. Appellant claims error in the 2 trial court’s twofold ruling that allowed the prosecutor (a) to impeach a defense witness, Vernon Parrish, with his prior inconsistent statements to defense counsel and a defense investigator disclosed in appellant’s in limine motion to admit Parrish’s third-party perpetrator testimony under Winfield v. United States, 676 A.2d 1 (D.C. 1996) (en banc), and (b) to “complete the impeachment” by a stipulation of the parties that Parrish, contrary to his denials on the stand, had made the inconsistent statements to the defense team.
  • Initial Draft Policy Recommendation on Expert Testimony

    Initial Draft Policy Recommendation on Expert Testimony

    NATIONAL COMMISSION ON FORENSIC SCIENCE PRESENTATION OF EXPERT TESTIMONY POLICY RECOMMENDATIONS 1. Experts should be asked to identify and explain the theoretical and factual basis for any conclusion and the reasoning on which the conclusion is based — and any limitations of their conclusions. 2. Experts should present testimony in a manner that accurately and fairly conveys the significance of their conclusions, avoiding unexplained or undefined technical terms or words of art. 3. Experts should remain neutral, and attorneys should respect this neutrality. 4. Experts should not testify beyond their expertise and should also appreciate the difference between testimony that the witness may give as an expert and testimony that the same witness may give as a lay/fact witness.1 5. Experts should not testify on direct or redirect examination concerning case-specific conclusions not contained in the report(s)/documentation submitted in discovery — unless in fair response to issues raised on cross-examination. If an expert changes his or her opinion, a supplementary report should be submitted except where the change is occasioned by new information, presented during testimony and not previously available to the witness. 1 The same witness may provide testimony as both an expert or a lay witness. The two roles need to be distinguished. The Federal Rules do “not distinguish between expert and lay witnesses, but rather between expert and lay testimony. Certainly it is possible for the same witness to provide both lay and expert testimony in a single case.” FED. R. EVID. 701 advisory committee’s note (2000). 1 6. Experts should not testify concerning conclusions that are beyond the limits of a laboratory’s testing protocols.
  • Administrative Law and the Regulatory Process

    Administrative Law and the Regulatory Process

    THE COUNCIL ON LICENSURE, ENFORCEMENT & REGULATION Promoting Regulatory Excellence Administrative Law and The Regulatory Process Understanding The Basics The Council on Licensure, Enforcement and Regulation 108 Windhaven Drive, Suite A, Nicholasville, Kentucky 40356 Phone: 859-269-1289 | www.clearhq.org | E-mail: [email protected] All rights reserved. Inquiries for use of any material should be directed to: Executive Director, The Council on Licensure, Enforcement and Regulation This manual is not to be reproduced in any form. Copyright © 2017 The Council on Licensure, Enforcement and Regulation (CLEAR). All Rights Reserved. ADMINISTRATIVE LAW AND THE REGULATORY PROCESS UNDERSTANDING THE BASICS Promoting Regulatory Excellence Day One 8:30 – 9:00 a.m. Registration 9:00 – 9:15 a.m. Introduction and Welcome Module I - Fundamentals 9:15 – 11:15 a.m. i. Sources & Functions ii. Purposes of Administrative Agencies iii. The Regulatory Process 11:15 – 12:15 p.m. iv. Limits on Administrative Agencies v. Sufficiency of Evidence in Administrative Proceedings 12:15 – 1:15 p.m. Lunch Module II - The Role of Agency General Counsel 1:15 – 3:00 p.m. i. Principles of Administrative Agencies, Boards and Colleges ii. Role as Board Counsel iii. Rulemaking 3:00 – 3:15 p.m. Break Module III - Adjudication of Administrative Cases 3:15 – 5:00 p.m. i. The Role of the Attorney in Compliance and Discipline ii. Adjudication of Administrative Cases Wednesday, September 13 Module IV - Litigation 9:00 – 10:30 a.m. i. Initiating the Hearing Process as a Disciplinary Prosecutor 10:45 – 11:00 a.m. Break 10:45 – 11:45 a.m.
  • Victims Under Attack: North Carolina's Flawed Rule 609 Daniel R

    Victims Under Attack: North Carolina's Flawed Rule 609 Daniel R

    NORTH CAROLINA LAW REVIEW Volume 97 | Number 6 Article 2 9-1-2019 Victims Under Attack: North Carolina's Flawed Rule 609 Daniel R. Tilly Follow this and additional works at: https://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Daniel R. Tilly, Victims Under Attack: North Carolina's Flawed Rule 609, 97 N.C. L. Rev. 1553 (2019). Available at: https://scholarship.law.unc.edu/nclr/vol97/iss6/2 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. 97 N.C. L. REV. 1553 (2019) VICTIMS UNDER ATTACK: NORTH CAROLINA’S FLAWED RULE 609* DANIEL R. TILLY** Evidence law in North Carolina senselessly punishes victims of domestic and sexual violence by broadly sanctioning witness impeachment with prior convictions––no matter the implicit prejudice to the witness or how little the conviction bears on credibility. The North Carolina approach is an outlier. Under Rule 609 of the Federal Rules of Evidence, the use of conviction evidence for impeaching witness credibility is confined to felonies and crimes involving dishonest acts or false statements. Their use must also satisfy judicial balancing tests aimed at protecting against unfair prejudice to the witness. The majority of states take a similar or even more restrictive approach. North Carolina’s corresponding rule, however, casts a far wider net. It broadly permits parties to impeach witnesses with an array of convictions, including innocuous misdemeanors, and affords no judicial discretion to protect the witness or weigh the potential for juror misuse.
  • EVIDENCE 1. Discuss Whether Bob's Statements to Attorney 1

    EVIDENCE 1. Discuss Whether Bob's Statements to Attorney 1

    GRADER’S GUIDE *** QUESTION NO. 1 *** SUBJECT: EVIDENCE 1. Discuss whether Bob’s statements to Attorney 1 will be protected by the rules of attorney/client privilege. 25% “A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between the client . and the client’s lawyer.” Evidence Rule 503(b). A communication is confidential if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services. Evidence Rule 503(a)(5). For purposes of the rule, a client is a person “who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services.” Evidence Rule 503(a)(1). Finally, Evidence Rule 510 mandates that a person who controls a privilege against disclosure waives the privilege if the person “voluntarily discloses or consents to disclosure of any significant party of the matter or communication.” The party asserting the privilege bears the burden of proving that the contested communication is protected by the privilege. See, e.g., Plate v. State, 925 P.2d 1057, 1066 (Alaska App. 1996) (concerning privileged communications to clergymen). As the Commentary to Evidence Rule 510 notes, [t]he central purpose of most privileges is the promotion of some interest or relationship by endowing it with a supporting secrecy or confidentiality. It is evident that the privilege should terminate when the holder by his own act destroys this confidentiality.
  • Witness Explanations During Cross-Examination: a Rule of Evidence Examined Jeffrey A

    Witness Explanations During Cross-Examination: a Rule of Evidence Examined Jeffrey A

    CORE Metadata, citation and similar papers at core.ac.uk Provided by Indiana University Bloomington Maurer School of Law Indiana Law Journal Volume 58 | Issue 2 Article 6 1983 Witness Explanations During Cross-Examination: A Rule of Evidence Examined Jeffrey A. Boyll Indiana University School of Law Follow this and additional works at: http://www.repository.law.indiana.edu/ilj Part of the Evidence Commons Recommended Citation Boyll, Jeffrey A. (1983) "Witness Explanations During Cross-Examination: A Rule of Evidence Examined," Indiana Law Journal: Vol. 58: Iss. 2, Article 6. Available at: http://www.repository.law.indiana.edu/ilj/vol58/iss2/6 This Note is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. Witness Explanations During Cross-Examination: A Rule of Evidence Examined Professor McCormick prefaced the 1954 edition of his Handbook of the Law of Evidence with this observation: "That part of the law of procedure known as evidence law has not responded in recent decades to the need for . rationalization as rapidly as other parts of procedural law."' Twenty-eight years later his observation still rings true. This note considers one common law rule of evidence which has never been rationally examined: the rule which allows a witness to explain any answer during cross-examination.2 In an effort to rationally examine the rule,' considera- tion is given to the goals of the adversary system as they are affected by the current rule and by the rule proposed by this note.
  • A Minimalist Approach to the Presentation of Expert Testimony

    A Minimalist Approach to the Presentation of Expert Testimony

    A MINIMALIST APPROACH TO THE PRESENTATION OF EXPERT TESTIMONY Edward J. Imwinkelried* Simplify. Simplify.1 Some commentators have suggested that, in the United States, trial by jury is becoming trial by expert.2 It is undeniable that the use of expert testimony is widespread. In the early 1990s, the Rand Corporation released a study on the incidence of expert testimony.3 The database included 529 civil cases tried in California Superior Court.4 The researchers found that [e]xperts testified in 86% of these civil jury trials. Overall, there were an average of 3.3 experts per trial; in the trials in which any experts appeared, there were an average of 3.8. Most trials with experts had two, three, four or five of them.5 The incidence of expert testimony would not be so high unless trial attorneys believed that jurors find that type of evidence persuasive. Yet there are indications that jurors often find that species of evidence unconvincing. For example, despite the substan- tial amount of expert testimony that the government proffered in the prosecution of O.J. Simpson, the jury acquitted. The behavior of the jury in the Simpson case is not an isolated phenomenon. In one study during the 1970s, researchers discovered that in cases where the prosecution introduced sound spectrography (voiceprint) evidence, the conviction rate was 11% lower than average.6 In another study conducted by one of the leading American legal psychologists, Dr. Elizabeth Loftus, the data suggested that lay * © Edward J. Imwinkelried, 2001. All rights reserved. Professor of Law and Director of Trial Advocacy, University of California at Davis.
  • Expert Witnesses

    Expert Witnesses

    Law 101: Legal Guide for the Forensic Expert This course is provided free of charge and is designed to give a comprehensive discussion of recommended practices for the forensic expert to follow when preparing for and testifying in court. Find this course live, online at: https://law101.training.nij.gov Updated: September 8, 2011 DNA I N I T I A T I V E www.DNA.gov About this Course This PDF file has been created from the free, self-paced online course “Law 101: Legal Guide for the Forensic Expert.” To take this course online, visit https://law101.training. nij.gov. If you already are registered for any course on DNA.gov, you may logon directly at http://law101.dna.gov. Questions? If you have any questions about this file or any of the courses or content on DNA.gov, visit us online at http://www.dna.gov/more/contactus/. Links in this File Most courses from DNA.Gov contain animations, videos, downloadable documents and/ or links to other userful Web sites. If you are using a printed, paper version of this course, you will not have access to those features. If you are viewing the course as a PDF file online, you may be able to use these features if you are connected to the Internet. Animations, Audio and Video. Throughout this course, there may be links to animation, audio or video files. To listen to or view these files, you need to be connected to the Internet and have the requisite plug-in applications installed on your computer.
  • Making Your Case Through Effective Direct Examination

    Making Your Case Through Effective Direct Examination

    Making Your Case Through Effective Direct Examination Paul K. Sun, Jr. & Kelly Margolis Dagger © Ellis & Winters LLP 20152018 What is direct examination? The examination of a witness you have called in the defense case. The witness could be your client, an expert, a law enforcement officer, a percipient witness, etc. © Ellis & Winters LLP 2015 Right to Present Witnesses “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” U.S. Const. amend VI. Remember to request trial subpoenas per Fed. R. Crim. P. 17, and do so early if you are asking the marshals to serve. © Ellis & Winters LLP 2015 Direct Examination—Overview A. Mechanics of Direct Examination B. Preparing Yourself for Direct Examination C. Preparing Your Witness for Direct Examination D. Conducting a Direct Examination © Ellis & Winters LLP 2015 MECHANICS OF DIRECT EXAMINATION © Ellis & Winters LLP 2015 Procedural Considerations—Rule 611 Fed. R. Evid. 611—Mode and Order of Examining Witnesses and Presenting Evidence (a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.
  • A Guide to Evidentiary Hearings

    A Guide to Evidentiary Hearings

    A Guide to Evidentiary Hearings Vermont Public Utility Commission PUBLIC UTILITY COMMISSION 2018 Table of Contents Introduction ....................................................................................................................... 1 Before the Hearing ............................................................................................................ 2 Witnesses and Exhibits ......................................................................................... 2 Preliminary Issues ................................................................................................. 3 Confidential Information ...................................................................................... 3 Large Cases ............................................................................................................. 3 Starting the Hearing ......................................................................................................... 3 Calling Witnesses and Admitting Prefiled Testimony and Exhibits ........................ 4 Cross-Examination of Witnesses .................................................................................... 6 Questions from the Commission .................................................................................... 7 Redirect Examination ....................................................................................................... 7 Concluding the Hearing .................................................................................................. 7 After